How to Get By-Right Zoning Right

March 23, 2017

By-Right Zoning seen as a critical strategy to help solve the affordable housing crisis, offering a streamlined approval process for developers. However, By-Right Zoning also acts as a better way to regulate walkable neighborhoods in the face of critically flawed conventional zoning policies.

By-Right Zoning is getting a lot of buzz these days as a needed tool to help solve the affordable housing crisis many communities are facing. For those unfamiliar, a zoning code is considered “By-Right” if the approvals process is streamlined so that projects that comply with the zoning standards receive their approval without a discretionary review process.

Housing advocates and developers rightfully claim that discretionary review processes are contributing to housing crises across the country by increasing the cost and delivery rate of housing, and often directly preventing needed housing from getting built. President Obama, Governor Brown of California and the State of Massachusetts have joined the “By-Right Zoning” bandwagon, and here at Opticos, we’re on board, too.

However, residents, environmental groups and others are rightfully upset about the idea of By-Right Zoning because it often seems that the discretionary review process is their only tool to prevent inappropriate and out-of-scale development. Their zoning codes are too blunt to provide the needed control, so they cling to discretionary review as their only protection. Admittedly, in some cases, this may be NIMBY’s refusing to allow more or certain people into their communities. However, in many other cases, it’s community members from all walks of life who want walkable neighborhood living rather than city living. They feel they have no other tools to compel developers to be respectful of their cherished places. From this perspective, By-Right Zoning may have Jane Jacobs rolling in her grave.

Conventional Zoning Is Too Blunt for a By-Right Process

So, isn’t zoning supposed to define what can be built in our communities? The answer is yes, but conventional zoning is plainly flawed. Here are some of the reasons conventional zoning doesn’t work well to regulate our walkable neighborhoods:-Conventional zoning regulates in the negative, describing what is NOT allowed rather than what is required or intended, preventing any possibility of accurately predicting what will be built. Setbacks, Floor Area Ratio (FAR) and density are examples of unpredictable regulations.-It doesn’t regulate enough detail regarding the form of the building and how it shapes the public space (and often regulates too much detail about unnecessary things). For example, in walkable neighborhoods, it’s often important that the front door faces the street, but most zoning doesn’t address this.-Conventional zoning codes are overly complicated, often with layers of fixes and overlays, rendering it nearly impossible to determine what actually can and cannot be built.

Without fixing these problems, removing the discretionary review process in cities and towns with conventional zoning could detrimentally impact our walkable neighborhoods.